Jones v. Jimenez et al

Filing 54

ORDER ADOPTING 52 Findings and Recommendations; ORDER GRANTING 36 Motion to Dismiss IN PART and DISMISSING Complaint with Leave to Amend, signed by District Judge Dale A. Drozd on 03/06/2017. (Attachments: # 1 Amended Complaint Form) (30-Day Deadline)(Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JEREMEY JONES,

12

Plaintiff,

13

v.

14

J. LUNDY, et al.,

15

No. 1:14-cv-02045-DAD-SAB

Defendants.

16

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, GRANTING
MOTION TO DISMISS IN PART, AND
DISMISSING COMPLAINT WITH LEAVE
TO AMEND
(Doc. Nos. 36, 52)

17
18
19
20

Plaintiff Jeremy Jones is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C.

21

§ 636(b)(1)(B) and Local Rule 302. On January 10, 2017, the assigned magistrate judge issued

22

findings and recommendations recommending that defendants’ motion to dismiss be granted in

23

part and denied in part, and that plaintiff be granted leave to amend his complaint. (Doc. No. 52.)

24

The magistrate judge also recommended that plaintiff’s request to amend his complaint to add a

25

claim under the Privacy Act, 5 U.S.C. § 552, be denied, because the Privacy Act has no

26

application to state agencies. (Id.) The findings and recommendations were served on the

27

parties and contained notice that objections thereto were to be filed within thirty days. On

28

February 16, 2017, plaintiff filed objections to the findings and recommendations. (Doc. No. 53.)
1

1

In his objections, plaintiff states that “[a]lthough the court recommended that the plaintiff

2

would be allowed leave to amend his complaint this exercise would be moot because the plaintiff

3

has no interest in alleging ‘facts’ that are not true or ‘[a]lternative [f]acts.’” (Doc. No. 53 at 1.)

4

Plaintiff appears to believe that the magistrate judge misunderstood certain factual allegations of

5

his second amended complaint to concern plaintiff rather than another inmate who had previously

6

occupied plaintiff’s cell. To be clear, and as indicated in the findings and recommendations,

7

plaintiff’s claims against defendants must be dismissed because they fail to demonstrate that

8

either defendant knew of the alleged conditions in plaintiff’s cell. (See Doc. No. 52 at 4–5.) In

9

order to state an Eighth Amendment deliberate indifference claim, plaintiff must allege facts

10

sufficient to show that each defendant was subjectively aware of an “excessive risk to inmate

11

health or safety.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (“[T]he official must both be

12

aware of facts from which the inference could be drawn that a substantial risk of serious harm

13

exists, and he must also draw the inference.”); see also Starr v. Baca, 652 F.3d 1202, 1205–08

14

(9th Cir. 2011) (noting a deliberate indifference claim against a supervisor must be “based upon

15

the supervisor’s knowledge of and acquiescence in unconstitutional conduct by his or her

16

subordinates”). As the magistrate judge noted in the pending findings and recommendations,

17

plaintiff’s second amended complaint did not contain “sufficient allegations to demonstrate

18

[defendants’] subjective knowledge of the conditions for which Plaintiff was subject in the SHU.”

19

(Doc. No. 52 at 5.) This is the defect plaintiff must address and cure in any third amended

20

complaint he elects to file in this action.

21

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has

22

conducted a de novo review of this case. Having carefully reviewed the entire file, the

23

undersigned concludes the findings and recommendations are supported by the record and by

24

proper analysis.

25

Given the foregoing:

26

1.

27
28

The findings and recommendations issued January 10, 2017 (Doc. No. 52) are
adopted in full;

/////
2

2. Defendants’ motion to dismiss (Doc. No. 36) is granted in part and denied in part, with

1
2

leave to amend granted only as to plaintiff’s condition of confinement claim;

3

3. The Clerk of the Court shall send plaintiff an amended civil rights complaint form; and

4

4. Plaintiff is granted leave to file, within thirty days, an amended complaint1 clarifying

5

the grounds upon which he is bringing his conditions of confinement claim.

6

IT IS SO ORDERED.

7

Dated:

March 6, 2017
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
1

22
23
24
25
26
27
28

Plaintiff is advised that an amended complaint will supersede his second amended complaint.
Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); King v. Atiyeh, 814 F.2d 565, 567
(9th Cir. 1987). The amended complaint must be “complete in itself without reference to the
prior or superseded pleading.” Local Rule 220. Plaintiff is warned that “[a]ll causes of action
alleged in an [second amended] complaint which are not alleged in an amended complaint are
waived.” King, 814 F.2d at 567 (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th
Cir. 1981)); accord Forsyth, 114 F.3d at 1474. In other words, even the claims that were properly
stated in the second amended complaint must be completely stated again in the amended
complaint. Plaintiff may not change the nature of this suit by adding new, unrelated claims in his
amended complaint, and leave to amend is only to add factual allegations as to his conditions of
confinement claim. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot”
complaints).
3